Louis Wozniak v. Ilesanmi Adesida

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 6, 2019
• Docket: 18-3315
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________

No. 18-3315 LOUIS WOZNIAK, Plaintiff-Appellant,

v.

ILESANMI ADESIDA, et al., Defendants-Appellees. ____________________

Appeal from the United States District Court for the Central District of Illinois. No. 15-cv-2275 — Colin S. Bruce, Judge. ____________________

ARGUED MAY 15, 2019 — DECIDED AUGUST 6, 2019 ____________________

Before WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges. EASTERBROOK, Circuit Judge. The University of Illinois fired Louis Wozniak in 2013. Until then he had tenure on the faculty of the College of Engineering. But after Wozniak waged an extended campaign against students who did not give him an award, the University’s Board of Trustees decid- ed that he had violated the institution’s norms and rules, in- cluding the need to treat students with respect. As he had 2 No. 18-3315

done before when the University insisted that he follow school policies, Wozniak responded with a federal lawsuit. He lost the last time, see Wozniak v. Conry, 236 F.3d 888 (7th Cir. 2001), and loses this time too. The district court’s lengthy opinion granting summary judgment to the defendants, 368 F. Supp. 3d 1217 (C.D. Ill. 2018), sets out all the pertinent facts, and then some, so we can be brief. Two student honor societies at the College of Engineering jointly give an annual teaching award. In spring 2009 they presented the award to Professor Ali E. Abbas. Wozniak thought that he should have received the award and set out to investigate. He called the head of one honor society to his office, aggressively interrogated her, got her to cry, and repeated the process with one of the University’s employees (who did not cry but was distressed). He then posted on his website information criticizing the student heads of the honor societies and enabling readers to deter- mine their identities. That violated the University’s policies as well as conditions adached to the University’s federal grants. 20 U.S.C. §1232g(b). The College’s Dean started tenure-revocation proceed- ings. The University’s Commidee on Academic Freedom and Tenure investigated, held hearings, and received submis- sions from the Interim Chancellor and Wozniak. The Com- midee concluded that Wozniak had engaged in several kinds of misconduct but that loss of tenure would be an excessive response. The University’s President presented the mader to the Board of Trustees, which held ultimate authority. It con- ducted its own hearing, including live testimony and cross- examination. Disagreeing with the Commidee, the Board thought Wozniak’s conduct a firing offense. No. 18-3315 3

One reason for the difference in opinion is what Wozniak did after the Commidee issued its report: he posted the en- tire document, and all evidence the Commidee received, on his website, revealing the identities of the students involved and the distress they felt at Wozniak’s conduct. He included a link to this material in the signature block of every email he sent from his University account. Wozniak did this after the Commidee informed him that disseminating identifying information about the students would be grounds for dis- missal. Told by the Dean to remove this material, Wozniak refused. Inconsiderate and insubordinate is the most chari- table description one can adach to this conduct. Before the Commidee’s hearing, Wozniak had sought to interrogate the students further about the circumstances leading to the award. After they refused to speak with him, Wozniak filed a civil suit in state court seeking damages from them. He concedes that the sole reason for filing this suit was to get a judicial order requiring the students to sit for depositions, and that he planned to dismiss the suit as soon as that had been done. In other words, Wozniak con- cedes commiding a tort against the students. (The tort is abuse of process.) In the event, the state judge dismissed the suit as frivolous before depositions occurred. The Board concluded that students should not be treated as Wozniak had done and that students’ educational lives would be beder without him on the faculty. Wozniak does not contend that the Board’s decision violated his tenure contract; instead he accuses the University of violating the Constitution of the United States. His lead argument is that the First Amendment (applied to the states through the Fourteenth) entitles faculty mem- 4 No. 18-3315

bers to make available to the public any information they please, no mader how embarrassing or distressful to stu- dents. This argument, even if correct, would not carry the day for him: he was fired for intentionally causing hurt to students, and refusing to follow the Dean’s instructions, not simply for publicizing the effects of his actions. What’s more, the argument is not correct. Wozniak acted in his capacity as a teacher. The subject of the award was teaching; he called students into his faculty office (a power he possessed by virtue of his job) and used his position to inflict the injuries that precipitated his dis- charge. Garce?i v. Ceballos, 547 U.S. 410, 421 (2006), holds that the First Amendment does not govern how employers re- spond to speech that is part of a public employee’s job. Wozniak tells us that his conduct was not part of his duties, and in a sense this is right: it did not concern how he ran his classroom, graded exams, assisted students in conducting experiments or writing papers, or conducted his own re- search and scholarship. Those are core academic duties. Yet how faculty members relate to students is part of their jobs, which makes Ceballos applicable. See Brown v. Chicago Board of Education, 824 F.3d 713, 715 (7th Cir. 2016). Professors who harass and humiliate students cannot successfully teach them, and a shell-shocked student may have difficulty learn- ing in other professors’ classes. A university that permits professors to degrade students and commit torts against them cannot fulfill its educational functions. There is another route to the same conclusion. Speech that concerns personal job-related maders is outside the scope of the First Amendment, even if that speech is not among the job’s duties. See, e.g., Connick v. Myers, 461 U.S. No. 18-3315 5

138 (1983). Whether an award by two student societies (ac- companied by $500 and a plaque) went to Abbas or to Woz- niak may have been important to Wozniak, but it is not a mader of public concern. Employers can insist that such maders of personnel administration be handled confidential- ly, using the employer’s preferred means. See, e.g., Bivens v. Trent, 591 F.3d 555, 560–62 (7th Cir. 2010). By humiliating students as a mader of self-gratification and persisting in defiance of the Dean’s instructions, Wozniak left himself open to discipline consistent with the Constitution. Wozniak’s second argument is that the Board violated the Due Process Clause of the Fourteenth Amendment. Ten- ured professors at public universities have property interests in their jobs and are entitled to notice and an opportunity for a hearing before they may be deprived of that interest. Compare Board of Regents v. Roth, 408 U.S. 564 (1972), with Perry v. Sindermann, 408 U.S. 593 (1972). But the Dean gave Wozniak formal notice, and he then had two hearings—one before the Commidee and one before the Board. At each he was represented by counsel and allowed to call witnesses and present argument. He was entitled as well to an impar- tial decisionmaker, see Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009); Peters v. Kiff, 407 U.S. 493 (1972), and the University honored that entitlement: Wozniak does not con- tend that any member of the Board was biased or otherwise disqualified. He does complain about one member of the Commidee, but its recommendation was favorable to him, and it was also not the decisionmaker. We have said enough to show that the due-process claim must be resolved in the University’s favor. Wozniak con- tends that the Commidee and Board did not follow all of the 6 No. 18-3315

University’s rules and regulations for tenure-revocation pro- ceedings, but this has nothing to do with the Constitution. The meaning of the Due Process Clause is a mader of federal law, and a constitutional suit is not a way to enforce state law through the back door. See, e.g., Snowden v. Hughes, 321 U.S. 1, 11 (1944); Davis v. Scherer, 468 U.S. 183, 192–96 (1984); Archie v. Racine, 847 F.2d 1211, 1215–18 (7th Cir. 1988) (en banc); Tucker v. Chicago, 907 F.3d 487, 494–95 (7th Cir. 2018) (citing other decisions). (Wozniak could not use federal liti- gation to enforce state law directly against a part of the state, see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 103–23 (1984).) Wozniak complains that the Board did not permit him to call every witness he wanted to present. But the Due Process Clause does not regulate the hearing’s every detail. Even in federal court—indeed, even in a crimi- nal prosecution, where procedural protections are at their maximum—the judge may exclude proffered evidence as irrelevant or cumulative, see Fed. R. Evid. 402, 403, or for other reasons laid out in the Rules of Evidence. The Board received the Commidee’s report and its lengthy evidentiary record and heard enough additional tes- timony to permit it to make an intelligent decision. The Con- stitution does not require the Board to take testimony from the Commidee’s members. (Again this is not required, in- deed usually is not allowed, in court, where judges make de- cisions based on administrative records without receiving decisionmakers’ testimony. See, e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971).) Likewise it is irrelevant who prepared initial drafts of the opinions for the Commidee or the Board. The members of the Federal Communications Commission do not necessarily draft their own opinions (neither do all federal judges), but this does No. 18-3315 7

not open them to constitutional adack. The University went well beyond the constitutional minimum. Wozniak’s remaining arguments do not require discus- sion. AFFIRMED